Fourth
Amendment
to
Third
Amended and Restated Credit Agreement
Among
Linn
Energy, LLC
as
Borrower,
BNP
Paribas,
as
Administrative Agent,
and
The
Lenders Signatory Hereto
Fourth
Amendment to Third Amended and Restated Credit Agreement
This
Fourth
Amendment to Third Amended and Restated Credit Agreement (this “Fourth Amendment”)
executed effective as of August 20, 2008 (the “Fourth Amendment Effective
Date”) is among Linn
Energy, LLC, a limited liability company formed under the laws of the
State of Delaware (the “Borrower”); each of
the undersigned guarantors (the “Guarantors”, and
together with the Borrower, the “Obligors”); each of
the Lenders that is a signatory hereto; and BNP
Paribas, as administrative agent for the Lenders (in such capacity,
together with its successors, the “Administrative
Agent”).
Recitals
A. The
Borrower, the Administrative Agent and the Lenders are parties to that certain
Third Amended and Restated Credit Agreement dated as of August 31, 2007 (as
amended by that certain First Amendment to Third Amended and Restated Credit
Agreement dated as of November 2, 2007, that certain Second Amendment to Third
Amended and Restated Credit Agreement dated as of January 31, 2008 and by that
certain Third Amendment to Third Amended and Restated Credit Agreement dated as
of June 16, 2008, the “Credit Agreement”),
pursuant to which the Lenders have made certain credit available to and on
behalf of the Borrower.
B. The
Borrower has requested and the Administrative Agent and the Lenders have agreed
to waive and/or amend certain provisions of the Credit Agreement.
C. NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Defined
Terms. Each capitalized term which is defined in the Credit
Agreement, but which is not defined in this Fourth Amendment, shall have the
meaning ascribed such term in the Credit Agreement. Unless otherwise
indicated, all section references in this Fourth Amendment refer to the Credit
Agreement.
Section
2. Amendments to Credit
Agreement.
2.1 Definitions. Section
1.02 is hereby amended by adding or amending and restating the following
definitions:
“ ‘Agreement’ means this
Third Amended and Restated Credit Agreement, as amended by that certain First
Amendment to Third Amended and Restated Credit Agreement, dated as of November
2, 2007, by that certain Second Amendment to Third Amended and Restated Credit
Agreement dated as of January 31, 2008, by that certain Third Amendment to Third
Amended and Restated Credit Agreement dated as of June 16, 2008, by that certain
Fourth Amendment to Third Amended and Restated Credit Agreement dated as of
August 20, 2008, and as the same may from time to time be further amended,
modified, supplemented or restated.”
2.2 Section
9.04(a). Section 9.04(a) is hereby amended and restated in its
entirety to read as follows:
“(a) Restricted
Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, return any capital to its stockholders or
make any distribution of their Property to their respective Equity Interest
holders, except (i) the Borrower may declare and pay dividends or
distributions with respect to its Equity Interests payable solely in additional
shares of its Equity Interests (other than Disqualified Capital Stock), (ii)
Subsidiaries may declare and pay dividends or distributions ratably with respect
to their Equity Interests, (iii) so long as (A) no Borrowing Base Deficiency,
Default or Event of Default has occurred and is continuing or would result
therefrom and (B) the total Revolving Credit Exposure is less than the
Conforming Borrowing Base, the Borrower may declare and pay quarterly cash
dividends to its members out of Available Cash for the preceding quarter
(including amounts borrowed as contemplated under clause (a)(ii) of the
definition of Available Cash subsequent to the end of such quarter) and (iv) so
long as (A) no Borrowing Base Deficiency, Default or Event of Default has
occurred and is continuing or would result therefrom and (B) after giving effect
thereto, there exists as least $400,000,000 of unused Borrowing Base
availability, the Borrower may repurchase or retire Equity Interests of the
Borrower in an aggregate amount not to exceed $100,000,000 since the First
Amendment Effective Date.”
Section
3. Conditions
Precedent. The effectiveness of this Fourth Amendment is
subject to the receipt by the Administrative Agent of the following documents
and satisfaction of the other conditions provided in this Section 3, each of
which shall be reasonably satisfactory to the Administrative Agent in form and
substance:
3.1 Payment
by the Borrower to the Administrative Agent of all fees and other amounts due
and payable on or prior to the Fourth Amendment Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower.
3.2 The
Administrative Agent shall have received multiple counterparts of this Fourth
Amendment from the Majority Lenders.
3.3 The
Administrative Agent shall have received such other documents as the
Administrative Agent or special counsel to the Administrative Agent may
reasonably request.
3.4 No
Default or Event of Default shall have occurred and be continuing as of the
Fourth Amendment Effective Date.
Section
4. Representations and
Warranties; Etc. Each Obligor hereby affirms: (a)
that as of the date of execution and delivery of this Fourth Amendment, all of
the representations and warranties contained in each Loan Document to which such
Obligor is a party are true and correct in all material respects as though made
on and as of the Fourth Amendment EffectiveDate
(unless made as of a specific earlier date, in which case, was true as of such
date); and (b) that after giving effect to this Fourth Amendment and to the
transactions contemplated hereby, no Defaults exist under the Loan Documents or
will exist under the Loan Documents.
Section
5. Miscellaneous.
5.1 Confirmation. The
provisions of the Credit Agreement (as amended by this Fourth Amendment) shall
remain in full force and effect in accordance with its terms following the
effectiveness of this Fourth Amendment.
5.2 Ratification and Affirmation
of Obligors. Each of the Obligors hereby expressly (i)
acknowledges the terms of this Fourth Amendment, (ii) ratifies and affirms its
obligations under the Guarantee Agreement and the other Security Instruments to
which it is a party, (iii) acknowledges, renews and extends its continued
liability under the Guarantee Agreement and the other Security Instruments to
which it is a party and agrees that its guarantee under the Guarantee Agreement
and the other Security Instruments to which it is a party remains in full force
and effect with respect to the Indebtedness as amended hereby.
5.3 Counterparts. This
Fourth Amendment may be executed by one or more of the parties hereto in any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
5.4 No
Oral Agreement. This
written Fourth Amendment, the Credit Agreement and the other Loan Documents
executed in connection herewith and therewith represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous, or unwritten oral agreements of the parties. There
are no subsequent oral agreements between the parties.
5.5 Governing
Law. This
Fourth Amendment (including, but not limited to, the validity and enforceability
hereof) shall be governed by, and construed in accordance with, the laws of the
State of Texas.
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly
executed effective as of the date first written above.
BORROWER: LINN
ENERGY, LLC
By: /s/ KOLJA
ROCKOV
Kolja
Rockov,
Executive
Vice President and Chief Financial Officer
GUARANTORS: LINN
ENERGY HOLDINGS, LLC
LINN
OPERATING, INC.
PENN
WEST PIPELINE, LLC
MID
ATLANTIC WELL SERVICE, INC.
MID-CONTINENT
HOLDINGS I, LLC
MID-CONTINENT
HOLDINGS II, LLC
MID-CONTINENT
I, LLC
MID-CONTINENT
II, LLC
LINN
GAS MARKETING, LLC
LINN
EXPLORATION MIDCONTINENT, LLC
By: /s/ KOLJA
ROCKOV
Kolja
Rockov,
Executive
Vice President and Chief Financial Officer
BNP PARIBAS, as Administrative
Agent and a Lender
By: /s/ DOUGLAS R.
LIFTMAN
Name: Douglas
R. Liftman
Title: Managing
Director
By: /s/ BETSY
JOCHER
Name: Betsy
Jocher
Title: Director
ROYAL BANK OF CANADA, as
Syndication Agent and a Lender
By: /s/ DON J.
MCKINNERNEY
Name: Don
J. McKinnerney
Title: Authorized
Signatory
SOCIETE GENERALE, as a
Co-Documentation Agent and a Lender
By: /s/ STEPHEN
WARFEL
Name: Stephen
Warfel
Title: Managing
Director
COMERICA BANK, as a
Lender
By: /s/ MATTHEW
TURNER
Name: Matthew
Turner
Title: Corporate
Banking Officer
FORTIS CAPITAL CORP., as a
Lender
By:
Name:
Title:
By:
Name:
Title:
CITIBANK, NA, as a
Co-Documentation Agent and a Lender
By:
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:
Name:
Title:
WACHOVIA BANK, N.A., as a
Lender
By: /s/ LEANNE S.
PHILLIPS
Name: Leanne
S. Phillips
Title: Director
BMO CAPITAL MARKETS FINANCING,
INC., as a Co-Documentation Agent and a Lender
By: /s/ JAMES V.
DUCOTE
Name: James
V. Ducote
Title: Director
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a
Lender
By: /s/ IAN
NALITT
Name: Ian
Nalitt
Title: Director
By: /s/ MORENIKEJI
AJAYI
Name: Morenikeji
Ajayi
Title: Associate
COMPASS BANK, as a
Lender
By:
Name:
Title:
DnB NOR BANK ASA, as a
Lender
By:
Name:
Title:
By:
Name:
Title:
DZ BANK AG, DEUTSCHE
ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, NEW YORK BRANCH, as a
Lender
By:
Name:
Title:
By:
Name:
Title:
GUARANTY BANK, FSB, as a
Lender
Name: W.
David McCarver IV
Title: Vice
President
LEHMAN BROTHERS COMMERCIAL
BANK, as a Lender
By: /s/ DARREN S.
LANE
Name: Darren
S. Lane
Title: Operations
Officer
JPMORGAN CHASE BANK, N.A., as
a Lender
By: /s/ MICHAEL A.
KAMAUF
Name: Michael
A. Kamauf
Title: Vice
President
THE ROYAL BANK OF SCOTLAND
plc, as a Lender
By: /s/ LUCY
WALKER
Name: Lucy
Walker
Title: Vice
President
RZB FINANCE LLC, as a
Lender
By:
Name:
Title:
By:
Name:
Title:
UNION BANK OF CALIFORNIA,
N.A., as a Lender
By: /s/ SCOTT
GILDEA
Name: Scott
Gildea
Title: Vice
President
U.S. BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ JUSTIN M.
ALEXANDER
Name: Justin
M. Alexander
Title: Vice
President
CALYON NEW YORK BRANCH, as a
Lender
By: /s/ SHARADA
MANNE
Name: Sharada
Manne
Title: Director
By: /s/ DAVID
GURGHIGIAN
Name: David
Gurghigian
Title: Managing
Director
THE BANK OF NOVA SCOTIA, as a
Lender
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender
By: /s/ DUSAN
LAZAROV
Name: Dusan
Lazarov
Title: Vice
President
By: /s/ ERIN
MORRISSEY
Name: Erin
Morrissey
Title: Vice
President
ALLIED IRISH BANKS P.L.C., as
a Lender
By:
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as
a Lender
By:
Name:
Title:
SUNTRUST BANK, as a
Lender
By: /s/ YARIN
PARIO
Name: Yarin
Pario
Title: Director
ING CAPITAL LLC, as a
Lender
By: /s/ CHARLES E.
HALL
Name: Charles
E. Hall
Title: Managing
Director
